Advisory Opinion 1091
Public Health/Contracting with Department

ISSUE: WHETHER A CURRENT COUNTY EMPLOYEE WHO IS RESPONSIBLE FOR TRAINING ACTIVITIES MAY ENGAGE IN OUTSIDE EMPLOYMENT TO PROVIDE SIMILAR TRAINING AND WHETHER THIS EMPLOYEE MAY SUBCONTRACT TO HIS OR HER OWN DEPARTMENT?

Opinion: The Board finds that the employee may not contract with either an independent trainer or a community-based agency if the department has a contractual relationship with those persons because the employee has official duties and responsibilities for the contractual process and therefore could incur a conflict of interest.

Statement of Circumstances: An employee in the Department of Public Health identifies and adapts curricula, develops training packages, and conducts training sessions primarily for community-based, non-profit service agencies with which the Department of Public Health subcontracts. In one instance, the employee has been asked by an independent trainer to provide training for various community agencies and groups both inside and outside King County. In another situation, the employee has been approached directly by agencies which subcontract with the department to provide training within the County. The type of training the employee would provide is substantially the same training the employee provides in an official capacity for the County. The Board of Ethics has been asked to determine whether either or both of these situations could present a conflict of interest under the Code of Ethics?

Analysis: The employee in this instance has responsibility for many aspects of the training relationship between the Department of Public Health and community-based, non-profit service agencies. In addition to identifying and adapting curricula, developing training packages, and conducting training sessions, the employee also has significant responsibility in the contractual process for training. The employee writes the Request for Proposals (RFPs) to solicit trainers, negotiates subcontracts with the community-based agencies, and provides technical assistance vis-à-vis awarded training contracts.

In previous advisory opinions which addressed the issues of contracting and outside employment, the Board has always considered whether an individual could be considered as "responsible" for a County action. Responsibility is primarily a function of work activity. In Advisory Opinion 1019 the Board defined criteria for whether or not an employee may be considered responsible under the Code of Ethics. These criteria included whether an employee is held accountable for his or her decisions either formally or informally; whether the employee exercises discretion with regard to actions or decision-making; and, whether the employee has the ability to control or affect processes or decisions because of his or her influence or because his or her recommendations are given substantial weight by the formal decision makers.

In this particular instance, the employee is responsible and participates in County actions through the RFP process, the negotiation of subcontracts, and by providing technical assistance for awarded contracts. Section 3.04.030 (B) of the Code of Ethics which provides that an employee shall be deemed to have a conflict of interest if the employee directly or indirectly:

Is beneficially interested, directly or indirectly, in any contract, sale, lease, option, or purchase that may be made by, through, or under the supervision of the employee, in whole or in part, or accepts, directly or indirectly any compensation, gift, or thing of value from any other person beneficially interested therein.

Because both the independent trainer and the community-based, non-profit agencies contract with the department, and because the employee is directly responsible for a contractual process related to the training he or she would be providing, the employee would be beneficially interested in a contractual arrangement with his or her own department.

References: King County Code of Ethics, sections 3.04.017 (C) and (J); 3.04.030 (B); Advisory Opinions 1019 and 1039.

ISSUED THIS ___________ DAY OF ___________________, 199__.

Signed for the Board: Dr. J. Patrick Dobel, Chair

Members:

Dr. J. Patrick Dobel, Chair
Timothy Edwards, Esq.
Rev. Paul Pruitt

JPD/mag

cc:

Gary Locke, King County Executive
Metropolitan King County Councilmembers
Susan Baugh, Director-Ombudsman, Office of Citizen Complaints
Sharon Stewart Johnson, Acting Director, Department of Public Health
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Emiko Mizuki, Support Services Manager, Department of Public Health